No. 03-14-00198-CV

IN THE THIRD COURT OF APPEALS 

at AUSTIN, TEXAS

CITY OF NEW BRAUNFELS, TEXAS, 

Defendant-Appellant

v. 

STOP THE ORDINANCES PLEASE, W.W. GAF, INC., D/B/A 

ROCKIN “R” RIVER RIDES, TEXAS TUBES, TOURIST ASSOCIATED 

BUSINESSES OF COMAL COUNTY; UNION RIVER LLC d/b/a LANDA 

RIVER TRIPS; CHUCK’S TUBES; WATERPARK MANAGEMENT, INC.; 

TRI-CITY DISTRIBUTORS, LP and STONE RANDALL WILLIAMS, 

Plaintiffs-Appellees

Appeal from the 207th District Court of Comal County, Texas 

Cause No. C2007-0387B

BRIEF OF AMICI CURIAE IN SUPPORT OF APPELLANT 

William G. Bunch 

State Bar No. 03342520

bill@sosalliance.org

Kelly D. Davis

State Bar No. 24069578 

kelly@sosalliance.org 

Save Our Springs Alliance

905 W. Oltorf St., Ste. A

Austin, Texas 78704

T: 512-477-2320 

F: 512-477-6410

Attorneys for Amici Curiae the Texas Rivers Protection Association, 

San Marcos River Foundation, Greater Edwards Aquifer Alliance, and 

Save Our Springs Alliance

ACCEPTED

03-14-00198-CV

4356321

THIRD COURT OF APPEALS

AUSTIN, TEXAS

3/3/2015 4:04:06 PM

JEFFREY D. KYLE

CLERK

 RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 3/3/2015 4:04:06 PM JEFFREY D. KYLE Clerk
TABLE OF CONTENTS

INDEX OF AUTHORITIES.........................................................................................ii

I. AMICUS DISCLOSURE...........................................................................................1

II. BACKGROUND......................................................................................................1

A. The Comal and Guadalupe Rivers...............................................................1

B. Amici’s Interests............................................................................................3

III. ARGUMENT.........................................................................................................6

A. Appellants have failed to meet their burden of showing, with 

unmistakable clarity, that the legislature intended to preempt the 

ordinances.......................................................................................................6

B. The Ordinances are a valid exercise of the City’s police power because 

they protect the public health, safety, and welfare....................................8 

C. Evidence in the record shows that the Ordinances have the intended 

effect of curbing trash in the Rivers...........................................................10

D. Home-rule authority must be preserved to ensure issues are addressed 

effectively and with community input......................................................12 

E. The Ordinances are a valid exercise of the City’s police powers over 

navigable waters and are not preempted by the Texas Constitution nor 

the Texas Parks and Wildlife Code.............................................................15

F. Texas Local Government Code § 551.002 provides further support that 

the Ordinances are a valid exercise of the City’s police power................19 

IV. CONCLUSION....................................................................................................21

CERTIFICATE OF COMPLIANCE............................................................................22

CERTIFICATE OF SERVICE....................................................................................23

i
INDEX OF AUTHORITIES

CASES

Carrithers v. Terramar Beach Cmty. Imp. Ass’n, Inc., 645 S.W.2d 772 (Tex. 

1983)..........................................................................................................18, 18 n.5

City of Brookside Vill. v. Comeau, 633 S.W.2d 790 (Tex. 1982).............7, 9, 13, 14

City of Houston v. Bates, 406 S.W. 3d 539 (Tex. 2013)....................................7, 21

City of Sherman v. Mun. Gas Co., 127 S.W. 2d 193 (Tex. 1939)......................6 n.2

City of Waxahachie v. Watkins, 275 S.W. 2d 477 (Tex. 1955)...............................8

Dallas Merch.’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489 (Tex. 

1993).....................................................................................................................6, 7

Diversion Lake Club v. Heath, 86 S.W. 2d 441 (Tex. 1935).........15, 15 n.4, 16, 18

Edge v. City of Bellaire, 200 S.W. 2d 224 (Tex. Civ. App.—Galveston 1947, writ 

ref’d)..........................................................................................................................9

Gorieb v. Fox, 274 U.S. 603 (1927)........................................................................13 

Guadalupe-Blanco River Auth. v. Pitonyak, 84 S.W. 3d 326 (Tex. App.—Corpus 

Christi 2002, no pet.).......................................................................................16, 17

Heard v. Town of Refugio, 103 S.W. 2d 728 (Tex. 1937).....................................18

Hunt v. City of San Antonio, 462 S.W.2d 536 (Tex. 1971)......................................7

In re Sanchez, 81 S.W. 3d 794 (Tex. 2002)...........................................................21 

Int’l Ass’n of Fire Fighters, Local 1173 v. City of Baytown, 837 S.W.2d 783 (Tex. 

App.—Houston [1st Dist.] 1992, writ denied).......................................................7 

Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975).........6 

ii
Proctor v. Andrews, 972 S.W. 2d 729 (Tex. 1998)..................................................6

Selman v. Wolfe, 27 Tex. 68 (1863).......................................................................17 

STOP v. City of New Braunfels, 306 S.W. 3d 919 (Tex. App.—Austin 2010, no 

pet.).........................................................................................................................14

Tex. River Barges v. City of San Antonio, 21 S.W. 3d 347 (Tex. App—San 

Antonio 2000, pet. denied)...............................................................8-9, 15, 17, 18

Welder v. State, 196 S.W. 868 (Tex. Civ. App.—Austin 1917, writ ref’d).....18 n.5

STATUTES AND CITY ORDINANCES

Tex. Health & Safety Code § 361.0961.................................................................20

Tex. Loc. Gov’t Code § 551.002...........................................................19, 20, 20 n.6

Tex. Parks & Wild. Code § 1.011(c)......................................................................15

New Braunfels, Tex., Code ch. 86, art. I, § 86-14(1) (2014) (“Cooler 

Ordinance”).....................................................................................................passim

New Braunfels, Tex., Code ch. 86, art. I, § 86-14(2) (2014) (“Disposable 

Container Ordinance”)...................................................................................passim

Austin, Tex., Code of Ordinances, Title 6, ch. 6-6, § 6-6-2..................................13

CONSTITUTIONAL & CHARTER PROVISIONS

Tex. Const., art. XI, § 5..............................................................................................6

Tex. Const. art. XVI, § 59........................................................................................15

New Braunfels City Charter § 2.01.........................................................................8

iii
ADDITIONAL SOURCES

THE TEXAS ALMANAC ONLINE, available at www.texasalmanac.com.........................1-3

TEXAS STATE HANDBOOK ONLINE, available at

www.tshaonline.org/handbook/online..........................................................................1-3

Texas Municipal League, Handbook for Mayors and Councilmembers (2013 

ed.).............................................................................................................................6 

6A EUGENE MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 24.10 (3rd ed. 

1984).........................................................................................................................9

Greg Bowen, Holiday Garbage up 438 Percent, NEW BRAUNFELS HERALD-ZEITUNG, 

July 2, 2014.............................................................................................................11

Asher Price, Researchers Find Carcinogen Dropoff in Lady Bird Lake Following 

Ban, AUSTIN AMERICAN-STATESMAN, June 16, 2014.................................................14

Tex. Comm’n on Envtl. Quality, Gem Seal of Tex., Inc. v. City of Austin, Docket 

No. 2006-0056-MIS, Exec. Dir.’s Reply Br. (May 25, 2007)..........................13, 14

iv
I. AMICUS DISCLOSURE

This brief is tendered on behalf of amici curiae the Texas Rivers 

Protection Association, San Marcos River Foundation, Greater Edwards 

Aquifer Alliance, and Save Our Springs Alliance, Inc. The Texas Rivers 

Protection Association made a donation to Save Our Springs Alliance to help 

cover the Alliance’s costs of preparing this brief. See Tex. R. App. P. 11(c). The 

remainder of costs for preparation was covered by general donations to the 

Save Our Springs Alliance from individuals, businesses, and foundations. 

II. BACKGROUND

A. The Comal and Guadalupe Rivers1

The Comal River is the shortest river in Texas, at two-and-a-half miles, 

and is contained entirely within the City of New Braunfels. As a spring-fed 

river, the Comal begins at Comal Springs in Landa Park and flows southeast 

through New Braunfels until it empties into the Guadalupe River. The Comal 

Springs—the largest springs in Texas and the American Southwest—are 

located in New Braunfels’s Landa Park, a popular picnic and recreation spot

1 The information in this section comes from first-hand knowledge of the rivers, as well as 

the following sources: THE TEXAS ALMANAC ONLINE, www.texasalmanac.com, and the TEXAS 

STATE HANDBOOK ONLINE, www.tshaonline.org/handbook/online , both published by the 

Texas State Historical Association, articles on “Comal Springs,” “Secondary Streams of 

Texas,” “Comal County,” “Guadalupe River,” and “New Braunfels.” Last accessed Feb. 25, 

2015. 

1

 
since the 1860’s and the home of seventy-six species of trees, including 

several ancient live oaks.

Unsurprisingly, the clear water emanating from the springs has 

attracted people to the area for hundreds of years. These springs were a 

favorite camping place for native Indian tribes, and many artifacts and burial 

mounds have been found. In the mid-1800’s, German pioneers established the 

City of New Braunfels (the City), which soon became the new German center 

for Texas. These industrious settlers began harnessing the Comal Springs for 

power, and the German heritage of the area is still celebrated today.

The Comal River is one of three major tributaries to the Guadalupe 

River, with their juncture in the middle of town. Although the Guadalupe is 

quite a bit larger, at 409 miles, it holds historic significance for the City as the 

site of one of the earliest Franciscan missionaries. It is difficult to overstate 

the rivers’ contribution to New Braunfels’s quality of life and economic 

prosperity. 

Today, the Comal and Guadalupe Rivers support a variety of 

recreational activities, including fishing, swimming, river tubing, rafting, 

kayaking, and driving along scenic river parkways. The popular water park 

resort Schlitterbahn’s sole source of water is the Comal River, and the nearby 

Comal Baths have been the site of city-conducted swimming lessons since 

2
1900. The Guadalupe River hosts the primary trout fishery in the state, 

supporting a thriving sport-fishing industry that relies on the health of the 

ecosystem. Because of the rivers’ beauty and popularity as a recreation area, 

owners of riverfront properties may choose to rent their property out to 

tourists, use it as a vacation home, or live there with full-time access to the 

river. In addition to their economic and recreational value, the Comal and 

Guadalupe Rivers support a variety of plant and animal life unique to Central 

Texas’ spring-fed rivers. With so much to see and do, it is easy to see why 

each year thousands of tourists come to enjoy New Braunfels and its rivers. 

Among those with a strong interest in keeping Texas rivers clean are the four 

amici curiae represented in this brief. 

B. Amici’s Interests 

As organizations concerned with the ecological integrity and economic, 

recreational, cultural, and aesthetic value of the waterways that mark the 

Texas Hill Country, amici curiae have a fundamental interest in ensuring that 

home-rule cities and their citizens maintain the authority to legislate at the 

local level for the purposes of protecting water quality and decreasing 

pollution for the benefit of all people. 

The Texas Rivers Protection Association (TRPA) is a non-profit 

organization led by pro-river volunteers across the State representing 

3
landowner coalitions, conservationists, canoe and kayak clubs, and fishing 

associations. Its members represent a broad and diverse cross-section of 

conservation and recreation groups and individuals with a common concern

for the quality of Texas’s natural rivers. TRPA’s mission is to protect the flow, 

water quality, and natural beauty of the rivers of Texas, promote awareness of 

the rights of the public and riparian landowners and foster a mutual respect, 

educate members and the public about conserving Texas rivers, and acquire 

property and easements to provide access to rivers. 

The San Marcos River Foundation (SMRF) is a non-profit formed in 

1985 by San Marcos citizens, riverside landowners, the San Marcos Lions 

Club, and other civic groups with a mission to preserve public access to the 

San Marcos River and protect the flow, natural beauty, and purity of the river 

and its watershed for future generations. SMRF works toward this goal with 

educational events, river cleanups, purchasing riparian land, and waterquality testing. 

The Greater Edwards Aquifer Alliance (GEAA) is an organization 

dedicated to protecting and preserving the Edwards Aquifer and the Hill 

Country’s scenic beauty and cultural heritage for the benefit of all residents, 

especially the 1.5 million Texans who rely on the Aquifer for drinking water. 

Its members include citizen-based conservation groups as well as groups from 

4
the religious, business, and historic preservation communities, stretching 

from Del Rio to Austin. GEAA groups work locally with a common 

commitment to education and action based on sound science and sustainable 

economic principles. 

Save Our Springs Alliance, Inc. is a non-profit, charitable organization 

dedicated to the preservation of the Edwards Aquifer, its springs and 

contributing streams, and to the natural and cultural heritage of the Hill 

Country region, with a special emphasis on Barton Springs. 

Consistent with the mission of these organizations, amici support New 

Braunfels’s authority to enact the ordinances at issue here. These public 

health and safety ordinances help preserve the economic, cultural, spiritual, 

recreational, and ecological value of the Comal River and that portion of the 

Guadalupe River within the City’s jurisdiction. Maintaining the purity and 

safety of these majestic ecosystems through local regulation will enhance the 

public’s use and enjoyment of these rivers within the City. Given the current 

water shortages facing the State, Texas cities are challenged to exercise their 

traditional home-rule powers in ways necessary to protect and sustain their 

local and increasing threatened water resources. Amici curiae thus have a 

legal interest in upholding a home-rule city’s authority to enact ordinances 

designed to protect rivers within municipal boundaries. Beyond regulations 

5
focusing on environmental protection, amici also have a legal interest in 

preserving the principle of home rule, which has been defined as “the right of 

citizens at the grassroots level to manage their own affairs with minimum 

interference from the state.” Texas Municipal League, Handbook for Mayors 

and Councilmembers, at 8 (2013 ed.). 

III. ARGUMENT

A. Appellants have failed to meet their burden of showing, with 

unmistakable clarity, that the legislature intended to preempt the 

ordinances. 

The City of New Braunfels, and all Texas home-rule cities, derive their

powers from the Texas Constitution. See Tex. Const. art. XI, § 5; Proctor v. 

Andrews, 972 S.W. 2d 729, 733 (Tex. 1998). Home-rule cities “possess the full 

power of self government and look to the Legislature not for grants of power, 

but only for limitations on their power.”Dallas Merch.’s & Concessionaire’s 

Ass’n v. City of Dallas, 852 S.W. 2d 489, 490-91 (Tex. 1993). Accordingly, Texas 

home-rule cities have “broad discretionary powers,” and, absent legislation or 

constitutional provisions to the contrary, “a home rule municipality is free to 

regulate itself in any manner it chooses.”2 Id. at 490; Lower Colo. River Auth. v. 

City of San Marcos, 523 S.W.2d 641, 643 (Tex. 1975). 

2 In contrast, counties and general law cities have only those powers prescribed by the 

legislature by general law. City of Sherman v. Mun. Gas Co., 127 S.W. 2d 193, 196 (Tex. 

1939). 

6

 
The legislature may limit the power of home-rule cities either expressly 

or by implication, but the legislature’s intent to limit such powers must appear 

with “unmistakable clarity.” City of Houston v. Bates, 406 S.W. 3d 539, 546 

(Tex. 2013) (citing Dallas Merch.’s, 852 S.W. 2d at 491). When a home-rule city 

ordinance is alleged to conflict with a state statute, a court’s duty is to 

reconcile the two “if any fair and reasonable construction of the apparently 

conflicting enactments exist[s] and if that construction will leave both 

enactments in effect.” Int’l Ass’n of Fire Fighters, Local 1173 v. City of Baytown, 

837 S.W. 2d 783, 787 (Tex. App—Houston [1st Dist.] 1992, pet. denied). 

This “unmistakable clarity” test and its corollary—that a home-rule city 

ordinance be upheld whenever there is “any fair and reasonable construction” 

of the ordinance and a state law alleged to be in conflict with the ordinance

“that will leave both enactments in effect”—control the outcome of this case. 

In applying this test, courts are hesitant to limit the authority granted to 

home-rule cities by the Texas Constitution. Hunt v. City of San Antonio, 462 

S.W.2d 536, 539 (Tex. 1971). In reviewing a challenge to a municipality’s 

regulatory action, a court’s role is “necessarily circumscribed as appropriate 

to the line of demarcation between legislative and judicial functions.” City of 

Brookside Vill. v. Comeau, 633 S.W. 2d 790, 792 (Tex. 1982). A city ordinance 

is presumed to be valid, and courts have no authority to interfere with matters 

7
of municipal government unless a charter provision or ordinance enacted 

thereunder is shown to be “unreasonable and arbitrary—a clear abuse of 

municipal discretion.” Id. Therefore, a party challenging an ordinance bears 

an “extraordinary burden” of establishing that “no conclusive or issuable fact 

or condition existed” which would authorize a city’s enactment of the 

ordinance. Id. at 792-93. If the evidence before the court reveals an issuable 

fact in this respect, such that reasonable minds may differ as to whether a 

particular ordinance is reasonable, the ordinance must stand as valid. Id. at 

793. In making this assessment, a court must give “due regard to all 

circumstances of the city, the object sought to be attained, and the necessity 

existing for the ordinance.” City of Waxahachie v. Watkins, 275 S.W. 2d 477, 

481 (Tex. 1955). 

B. The Ordinances are a valid exercise of the City’s police power

because they protect the public health, safety, and welfare. 

Pursuant to its police power, New Braunfels has the authority to enact 

the Ordinances. The New Braunfels City Charter expressly declares that the 

City “shall have all powers possible for a home rule city to have under the 

constitution and laws of the State of Texas as fully and completely as though 

they were specifically enumerated in this charter.” City Charter, § 2.01. This 

provision incorporates the police power as a power of the City. See Tex. River 

8
Barges v. City of San Antonio, 21 S.W. 3d 347, 355 (Tex. App—San Antonio 

2000). 

An ordinance is a valid exercise of a city’s police power if the regulation 

was adopted to accomplish a legitimate goal, that is, it has a “substantial 

relationship” to the protection of the public’s general health, safety, or 

welfare. Comeau, 633 S.W. 2d at 793. Although the exact parameters of the 

police power are difficult to define, courts have found it useful to think of it as 

the “power to anticipate and prevent dangers and to protect the inhabitants of 

a community, and in so doing, to restrain individual tendencies.” Tex. River 

Barges, 21 S.W. 3d at 355 (citing 6A EUGENE MCQUILLIN, THE LAW OF MUNICIPAL 

CORPORATIONS § 24.10 (3rd ed. 1984)). Further, “if there is an issuable fact as 

to whether the ordinance makes for the good of the community, the fact that it 

may be detrimental to some private interest is not material in assessing an 

ordinance’s validity.” Id. (citing Edge v. City of Bellaire, 200 S.W. 2d 224, 227 

(Tex. Civ. App.—Galveston 1947, writ ref’d)).

Here, the Ordinances are a valid exercise of the City’s police powers and 

are not unreasonable or arbitrary. The City enacted the Ordinances to address 

pollution and litter problems specific to the Comal River and that short piece 

of the Guadalupe River within the City’s jurisdiction. New Braunfels., Tex., 

Code ch. 86, art. I, §86-14. The goal of the Ordinances is to protect the public 

9
health and welfare by restricting within the Rivers certain containers that 

result in large amounts of trash ending up in the Rivers. Preventing the 

pollution and degradation of the Rivers bears a substantial relationship to the 

public health, safety, and general welfare. The fact that individuals are 

restrained from doing whatever they want on the Rivers, or that Appellees 

suffer reduced revenues, does not render the Ordinances an abuse of 

municipal discretion. 

C. Evidence in the record shows that the Ordinances have the 

intended effect of curbing trash in the Rivers. 

In enacting the Ordinances, the City government was reacting to 

concerns particular to the City—trash and pollution in the Guadalupe and 

Comal Rivers within its borders. Evidence in the record concerning the 

amount of trash in the Rivers prior to the Ordinances’ enactment 

demonstrates the need to regulate activities that result in such pollution. In its 

legislative findings, the City Council set forth the problems it intended to 

address through the Ordinances. 

In his deposition, the Manager of the City’s Solid Waste Division noted, 

“the City has experienced a significant reduction in the amount of trash

and litter that was collected and accounted for the years 2012 and 2013 in 

comparison to year 2011.” Michael Mundell Aff., attached to Def.’s Resp. to 

10
Pls.’s Mot. Entry of Final J., filed Feb. 7, 2014) (attached as Ex. A). After 

becoming effective on January 1, 2012, the Disposable Container Ordinance 

greatly contributed to the reduction in trash found in the rivers during the 

years 2012 and 2013. Most astonishingly, the Comal River alone yielded 97 

tons of trash and litter in 2011 before the enactment of the Disposable 

Container Ordinance. The amount of trash and litter collected from the Comal 

River overwhelmingly decreased—with 24 tons in 2012 and 34 tons in 

2013—after the enactment of the Disposable Container Ordinance. Thus, the 

City collected 75% and 65% less trash and litter from the Comal River, 

respectively, in years with the Ordinance in effect compared to without.

Mundell Aff. The record shows not only that the City was facing a serious 

problem of trash in the Rivers, but also that the Ordinances serve the intended 

purpose of decreasing pollution and trash in the Comal River and New 

Braunfels’s piece of the Guadalupe.

Following the trial court’s ruling granting summary judgment for 

Appellees and enjoining the Ordinances, the amount of trash and litter 

collected from the Comal River drastically increased by 438% during the 2014 

Memorial Day weekend in comparison to the 2013 Memorial Day weekend. 

Greg Bowen, Holiday Garbage up 438 Percent, NEW BRAUNFELS HERALD-ZEITUNG, 

July 2, 2014 (attached as Ex. B). These data, reported in the City of New 

11
Braunfels’s River Services Update, show the amount of trash collected was 

significantly higher when the Ordinances were not in effect. Prohibiting 

behaviors that lead to more trash ending up in the rivers protects the public 

health and promotes the general welfare. Thus, adequate governmental 

interests are served by regulating the amount and type of disposable 

materials being brought in to the Rivers. At a minimum, these data present an 

“issuable fact” over whether the regulations are reasonably related to a 

legitimate governmental interest. The Ordinances, therefore, must stand as a

valid exercise of the City’s police power. 

D. Home-rule authority must be preserved to ensure local conditions 

are addressed effectively and with community input. 

The City’s enactment of the Ordinances as a response to the problem of 

huge amounts of trash in the Rivers highlights the importance of home rule. 

Home rule assumes that governmental problems should be solved at the 

lowest level possible, closest to the people, with limited reach and addressing 

local conditions. Local governing bodies are most in tune with the particular 

issues that face their jurisdictions and can tailor regulations most apt to 

resolve those local issues. Courts have repeatedly acknowledged the 

judiciary’s limited role in disturbing local enactments unless clearly 

12
unreasonable. This principle is embodied in judicial recognition of the 

importance of local government’s zoning power: 

State legislatures and city councils, who deal with the situation 

from a practical standpoint, are better qualified than the courts to 

determine the necessity, character, and degree of regulation 

which these new and perplexing conditions required; and their 

conclusions should not be disturbed by the courts unless clearly

arbitrary and unreasonable. 

Gorieb v. Fox, 274 U.S. 603, 608 (1927). Similarly, localized pollution 

problems such as the unique circumstances found on the Comal River and that 

short stretch of the Guadalupe within the City are best addressed at the local 

level. 

The Texas Supreme Court has upheld an ordinance regulating the 

placement of mobile homes, noting that the regulations were important to 

preserving public health and property values in the municipality because of 

the unique conditions presented there. Comeau, 633 S.W. 2d at 795. Another 

example is provided by the City of Austin’s ordinance prohibiting a type of 

pavement sealant. Austin, Tex., Code of Ordinances, Title 6, ch. 6-6, §6-6-2. In 

2003, Austin officials singled out parking lot sealants as a likely source of 

hydrocarbon pollution in Austin’s lakes and creeks. Tex. Comm’n on Envtl. 

Quality, Gem Seal of Tex., Inc. v. City of Austin, Docket No. 2006-0056-MIS, Exec. 

Dir.’s Reply Br. at 2 (May 25, 2007). Austin banned the sealants in 2006, and 

13
studies recently conducted showed a 58% decline in the pollutant, which is 

toxic to aquatic life and a likely carcinogen. Asher Price, Researchers Find 

Carcinogen Dropoff in Lady Bird Lake Following Ban, AUSTIN AMERICANSTATESMAN, June 16, 2014 (attached as Ex. C). In a challenge to the ban before 

the Texas Commission on Environmental Quality, Austin’s authority to adopt 

ordinances to protect water quality was upheld. Id.; Gem Seal of Tex., Inc. v. 

City of Austin, Exec. Dir.’s Reply Br. at 2. 

Like the cities of Brookside Village and Austin, New Braunfels’s

authority to adopt ordinances addressing the unique issues facing the City

should be upheld. As this Court previously acknowledged, New Braunfels 

officials became aware of an issue threatening the public health and welfare, 

appointed a River Activities Committee to devise possible solutions, and 

implemented some of the suggested solutions.3 STOP v. City of New Braunfels, 

306 S.W. 3d 919, 923 (Tex. App.—Austin 2010). This is local government 

working at its best and exemplifies why courts will not interfere with a local 

regulation absent a “clear abuse of municipal discretion.” See Comeau, 633 

S.W. 2d at 792. 

3 After its passage by the City Council, the Disposable Container Ordinance was challenged 

via referendum and upheld by the voters, further demonstrating the importance of 

addressing the issues of trash on the river to the local residents. CR:545-49. 

14

 
E. The Ordinances are a valid exercise of the City’s police powers 

over navigable waters and are not preempted by the Texas 

Constitution nor the Texas Parks and Wildlife Code. 

Appellees erroneously argue that the Ordinances unconstitutionally 

“invade the public’s right to use and enjoy the rivers,” because only the State 

and duly delegated entities have the right to regulate navigable streams. 

Appellees’ Br. at 41 (citing Tex. Const. art. XVI, § 59 and Tex. Parks & Wild.

Code § 1.011(c)). This argument fails because the Ordinances in no way 

invade constitutionally protected rights of the public and are a valid exercise 

of the City’s police power through its inherent powers as a home-rule city and 

by virtue of the Texas Local Government Code. 

It is not in dispute that navigable streams are held in trust for the public 

to use for “navigation, fishing, and other lawful purposes,” and that the public 

has a right to use navigable streams for commercial as well as recreational 

purposes. See Diversion Lake Club v. Heath, 86 S.W. 2d 441, 444 (Tex. 1935); 

Tex. River Barges, 21 S.W. 3d at 352. However, the Ordinances do not run 

afoul of the Constitution or Parks and Wildlife Code because they do not 

interfere with the public’s ability to access and navigate the Rivers.4

4 Although Diversion Lake Club mentions “enjoyment of the river” one could argue that the 

Ordinances impair certain individuals’ “enjoyment” of the river, it is clear from the context 

that “enjoy” means access to the river and exercise of the right to use it, rather than bring 

or do anything one subjectively might find enjoyable. To demonstrate the danger of using 

15

 
The Ordinances do not prohibit the public from accessing the Rivers, but 

rather, make it unlawful “to use, carry, or possess food or beverages in a 

disposable container” on the Rivers. New Braunfels, Tex., Code ch. 86, art. I, § 

86-14(1). The public’s right to access and navigate rivers does not mean that 

anybody has free reign to bring anything into the river they desire, or that a 

City cannot exercise its police powers to restrain behavior that could diminish 

the public’s safe enjoyment of the river. The right to use the waters is not 

without limits. “The fact that navigable streams are held in trust for the 

benefit of the public does not mean that the State or a duly-delegated 

governmental agency has no authority to restrict navigation on the same.” 

Guadalupe-Blanco River Auth. v. Pitonyak, 84 S.W. 3d 326, 340 (Tex. App.—

Corpus Christi 2002); see also Diversion Lake Club, 86 S.W. 2d at 445 (noting 

that right to fish in public water does not entail the right to cross or trespass 

upon privately owned land in order to reach the water). Indeed, the public’s 

right to use the river for fishing and “other lawful purposes” suggests that 

governmental entities can and do make unlawful some uses of the river. And 

the fact that an activity has historically been lawful does not preclude 

governmental action making it unlawful, particularly when circumstances 

“enjoy” subjectively, consider this: some might enjoy the river more with disposable 

containers, while others enjoy it significantly less without the prohibitions. 

16

 
come to exist that demonstrate problems with that activity—e.g., over 1,400 

pounds of trash collected from the Comal River after the 2011 Memorial Day 

Weekend. 

Moreover, New Braunfels, as a home-rule city, has been delegated the 

police power, and it may exert the police power over the navigable waters 

within its boundaries. See Tex. River Barges, 21 S.W. 3d at 355; see also 

Guadalupe-Blanco River Auth., 84 S.W. 3d at 340 (“[S]tates and their delegates 

may exert police power over the navigable waters in their boundaries...”). 

Appellees cite to no cases—and amici could find none—employing the Texas 

Constitution or the Texas Parks and Wildlife Code to limit the authority of 

cities to regulate use of waterways within their borders. 

Although Appellees contend that only the State can regulate navigable 

waters, the cases cited by Appellees stand for the proposition that private 

entities cannot interfere with the public’s access to navigate waterways.

Appellees cite an 1863 case in support of its assertion that the City cannot 

regulate waterways, but that case is inapposite. See Appellees’ Br. at 41

(citing Selman v. Wolfe, 27 Tex. 68 (1863)). There, the issue was whether the 

Legislature, in authorizing a private entity to erect a bridge, had also 

conferred the right to obstruct navigation of a stream. Selman, 27 Tex. at 70. 

Thus, the analysis centered on the stream as a state highway, and whether a 

17
private entity could obstruct its use as a highway. Id.; see Diversion Lake Club,

86 S.W. 2d at 446 (holding public had right to fish in lake created by a dam, 

rather than exclusively belonging to owner of land that was flooded by dam); 

Carrithers v. Terramar Beach Cmty. Imp. Ass’n, Inc., 645 S.W.2d 772, 774 (Tex. 

1983) (holding that individual landowner is without power to convey an 

exclusive right to use navigable waters).

5 The case Heard v. Town of Refugio

comes closer—but still falls short of supporting Appellees’ point. See 103 S.W. 

2d 728 (Tex. 1937). There, the issue was whether a town or individuals held 

title to a river bed located in adjoining tracts of land. Id. at 728-29. The court 

noted that among properties owned by cities and towns for public benefit, 

river beds were not one. Id. at 734. But nothing in this case suggests that the 

City needs to hold title to the river bed to regulate activities on the Rivers for 

public purposes.

More recently, a Texas court expressly upheld a city’s authority to 

regulate activities on the river within its jurisdiction. In Texas River Barges v. 

City of San Antonio, the court upheld an ordinance regulating navigation on 

the San Antonio River. 21 S.W. 3d at 350. Acknowledging that this river is a 

5 The quote attributed to Welder v. State on page 42 of Appellees’ Brief actually comes from 

the Carrithers case, which does not cite to Welder, 196 S.W. 868 (Tex. Civ. App.—Austin 

1917, writ ref’d). Although the quoted excerpt discusses the water belonging to the Texas 

and United States governments, this sentence is immediately followed by “An individual 

landowner is without power to convey such a right,” demonstrating that the juxtaposition 

was between sovereigns and private entities, not cities. 

18

 
navigable stream which may be used and enjoyed by the public, the court 

nevertheless held that the City has authority to regulate navigation on the 

River to “prevent endangering the public and jeopardizing the River’s 

distinctive and sedate character.” Id. Thus, the court upheld San Antonio’s 

ordinance requiring vessels to obtain the city’s permission to operate on the 

river. Id. at 351. Although that ordinance expressly restricted navigation on 

and access to the waterway, the court upheld it as a proper exercise of the 

city’s police power. The indisputably less restrictive Ordinances at issue here 

should likewise be upheld as a valid exercise of the City’s police power. 

F. Texas Local Government Code § 551.002 provides further support 

that the Ordinances are a valid exercise of the City’s police power. 

To the extent that home-rule cities are limited in their power to regulate 

navigable streams, state statute expressly grants the City authority to enact 

the Ordinances here. Section 551.002 of the Local Government Code provides 

that “a home-rule municipality may prohibit the pollution or degradation of 

and may police a stream... that may constitute or recharge the source of water 

supply of any municipality.” Evidence in the record shows that the Guadalupe 

and Comal Rivers are part of the Middle Guadalupe River Watershed, which 

constitutes and recharges the water supply of several municipalities. CR:936; 

938. Thus, the City has authority to enact ordinances to decrease pollution 

19
and degradation of this resource. Appellees’ strained interpretation of § 

551.002 is absurd. See Appellees’ Br. at 40. Appellees argue that, because 

Texas Health and Safe Code § 361.0961 prohibits municipalities from 

regulating the use of disposable containers, in enacting § 551.002, the 

Legislature must have anticipated forms of pollution and policing a stream 

other than litter. Id. As support, Appellees point to the Texas Litter Abatement 

Act, which criminalizes littering in Texas rivers, and contend that if § 551.002 

were to address litter it would be redundant with this Act. Id. But that is 

simply not true. Section 551.002 does not make littering in rivers a crime; it 

merely authorizes cities to take action to protect streams; thus the statutes do 

not serve the same purpose and are not redundant.6 

Moreover, if the legislature intended to exclude litter from the kind of 

pollution a city could police under § 551.002, it could have made that

exception clear by defining “pollution” in the statute at issue. It did not. The 

legislation does not address the fact pattern present here—there is nothing to 

indicate that the legislature actually thought about the issue of too many 

beverage containers in rivers running through municipalities. Thus, the 

6 Further, under Appellees’ interpretation of § 551.002—that it is intended for cities to 

address water pollution other than litter—this provision may be redundant with Water 

Code § 26.177, which provides that “a city may establish a water pollution control and

abatement program for the city,” and regulations adopted under this section address the 

type of “non-litter pollution” that Appellees argue is the subject of § 551.002. 

20

 
Legislature did not express an “unmistakably clear” intent to preempt the 

City’s power to enact ordinances designed to reduce pollution in rivers within

City limits. Rather, there is a reasonable construction giving effect to both the 

state statute and the City’s ordinances, and the ordinances are not preempted. 

See City of Houston v. Bates, 406 S.W. 3d at 546. This construction also gives 

appropriate deference to the broad discretionary powers the Texas 

Constitution grants to home-rule cities. See In re Sanchez, 81 S.W. 3d 794, 798 

(Tex. 2002). 

In sum, the City has both the inherent home-rule authority to police 

navigable streams in its boundaries and the water-protection powers granted 

by the Local Government Code. Those powers support the public health and 

safety Ordinances challenged in this case. Appellees cannot point to any 

superior state law that displaces these ordinances with “unmistakable clarity.” 

The unmistakably clarity in this case is found in the waters of the Comal River.

IV. CONCLUSION

As a home-rule city, New Braunfels has the inherent authority to enact 

reasonable regulations that promote the public welfare and are not contrary 

to the constitution or laws of the State. The Ordinances bear a substantial 

relationship to the public health, safety, and general welfare, and are thus a 

reasonable exercise of the City’s authority. Appellees failed to carry their 

21
substantial burden of establishing that the Ordinances are invalid. 

Accordingly, amici respectfully request that this Court reverse the decision of 

the trial court and reinstate the Ordinances. 

Respectfully submitted, 

/s/ Bill Bunch_____

Bill Bunch 

State Bar No. 03342520

bill@sosalliance.org

/s/ Kelly D. Davis____

Kelly D. Davis

State Bar No. 24069578

kelly@sosalliance.org

Save Our Springs Alliance

905 W. Oltorf St., Ste. A

Austin, Texas 78704

T: (512) 477-2320

F: (512) 477-6410

Attorneys for Amici Curiae

CERTIFICATE OF COMPLIANCE

This brief complies with the maximum length limit set forth in Tex. R. 

App. P. 9.4(i)(2) because it contains 4,980 words, excluding the parts of the 

brief exempted by Tex. R. App. P. 9.4(i)(1). The word count was computed by 

Microsoft Word, which was used to prepare the document. 

/s/Kelly D. Davis

Kelly D. Davis

22
CERTIFICATE OF SERVICE

I certify that, on March 3, 2015, a copy of the foregoing Brief of Amici 

Curiae in Support of Appellant was served electronically via FileTime on the 

following counsel of record:

Jim Ewbank

Cokinos, Bosien & Young

1210 Nueces St

Austin, TX 78701

Jonathan H. Hull

Reagan Burrus, PLLC 

401 Main Plaza, Ste. 200

New Braunfels, TX 78130

Attorneys for Appellees

William M. McKamie

Adolfo Ruiz

McKamie Krueger LLP

941 Proton 

San Antonio, TX 78258

Bradford E. Bullock

Knight & Partners 

223 W. Anderson Lane, Ste. A-105

Austin, TX 78752

Attorneys for Appellant 

/s/Kelly D. Davis

Kelly D. Davis

23
Exhibit A

Affidavit of Michael Mundell, Manager of the Solid Waste Division, Public 

Works Department, City of New Braunfels 

Originally attached to Defendant’s Response to Plaintiffs’ Motion for Entry of 

Final Judgment, and for an Order that the Judgment Not Be Superseded by 

Appeal, and for Attorney’s Fees (filed Feb. 7, 2014, Comal Cnty. District Court)
AFFIDAVIT OF MICHAEL MUNDELL 

STATE OF TEXAS 

COUNTY OF COMAL 

My name is Michael "Mike" Mundell. I am over 21 years of age, of sound mind and 

capable of making this affidavit. I am currently the Manager for the Solid Waste Division of the 

Public Works Department for the City of New Braunfels and I am responsible for managing the 

solid waste division of the City's Public Works Department. I have been in my current position 

since August 20 I 0. l have personal knowledge of the facts stated herein, and they are true and 

correct. 

As the Manager of the Solid Waste Division, I am responsible for overseeing the City of 

New Braunfels's efforts regarding the Comal River cleanup practices. As part of my 

responsibility, I am familiar with the amount of trash and litter that is collected and accounted for 

above the water in public areas alongside the Comal River and under the water in the Comal 

River. Since the enactment of the Disposal Container Ordinance which was effective January l, 

2012, the City has experienced a significant reduction in the amount of trash and litter that was 

collected and accounted for the years 2012 and 2013 in comparison to year 2011. The total 

estimated trash and litter for above and below water in the Comal River for 2011 is 

approximately 97 tons. The total estimate for trash and tiller for above and below water in the 

Comal River for 2012 was approximately 24 tons which was 75% less than the 2011 amount. 

The total estimate for trash and liter for above and below water in the Comal River for 2013 was 

approximately 34 tons which was 65% less than the 2011 amount. 

Further affiant sayeth not. 

1!:)£1~, ~ $/ 

Michael Mundell, Solid Waste Manager for 

The City of New Braunfels, Texas 

SWORN TO and SUBSCRIBED BEFORE ME on February 5, 2014. 

~\\\1111111, - Ch; .. 

~~;~~.Yrrtt;..,. c. WILKE 

( l, ! Notary Publio, State of Texas 

~~· "'l\ft) My Commission Expires 1

'11, 11'\' Augusl 06f 2015 

' 

NOTARY PUBLIC, In and For the State of Texas 
Exhibit B

Greg Bowen, Holiday Garbage up 438 Percent, NEW BRAUNFELS HERALD-ZEITUNG, 

July 2, 2014
Holiday garbage up 438 percent

By Greg Bowen New Braunfels Herald-Zeitung | Posted: Wednesday, July 2, 2014 10:52 pm

A report released Wednesday by the City of New Braunfels indicates that the amount of river litter

left behind by tubers increased greatly this past Memorial Day Weekend when compared to the same

weekends in the “can ban” summers of 2013 and 2012.

River trash was up by 438 percent over 2013 and by 356 percent over 2012, according to figures

from the city’s River Services Update.

The can ban, or disposable container ban, was approved by New Braunfels City Council and by city

voters following the “River Wild” summer of 2011. The anti-litter law prohibited tubers from carrying

beer cans and other throw-away food and beverage containers on portions of the Comal and

Guadalupe Rivers within the city limits.

Following a lawsuit by local tubing and tourism firms, the prohibition was set aside in March by a

judge who declared the can ban unconstitutional and ordered the city to stop enforcing it. The city is

currently appealing the ruling to the Third Court of Appeals in Austin.

The River Services Update — the latest report available on river litter collections — said the city’s

contract scuba divers removed 242 pounds of river litter during this year’s Memorial Day Weekend,

which unofficially kicked off the summer tubing season.

That compares to just 45 pounds collected for the Memorial Day Weekend in 2013, the second

summer of the can ban.

That same weekend in 2012, the first summer of the can ban, 53 pounds of river trash were scuba’d

up.

Non-ban years compared

The report also showed that while this year’s Memorial Day Weekend river trash haul was way

above the litter totals experienced during the can ban years, it was nowhere near the trash haul seen

in the pre-can ban summer of 2011.

On the Memorial Day Weekend in 2011, according to the report, 1,421 pounds of river trash were

collected — 487 percent more than seen during this year’s Memorial Day Weekend.

That disparity may be attributable at least in part to the fact that Memorial Day Weekend 2014 was

somewhat rainy while crowd-control measures had to be implemented during Memorial Day

Weekend 2011, which kicked off the infamous “River Wild” summer during which tens of thousands

of tubers descended on the city and there were drownings, hundreds of river-related arrests for such

things as public intoxication, DUI, littering, marijuana possession, jumping from bridges and noise

violations.

“Perhaps weather and crowd-size comparisons between Memorial Day Weekend 2011 and 2014

were a factor,” speculated Sheri Masterson, the city’s public information officer, who added that the

“massive public education campaign mounted to bring attention to good stewardship of our natural

resources over the past several years” may also have played a part.

Holiday garbage up 438 percent - Herald-Zeitung Online: News http://herald-zeitung.com/news/article_7f6e5010-0265-11e4-b116-001...

1 of 1 12/3/2014 3:14 PM
Exhibit C

Asher Price, Researchers Find Carcinogen Dropoff in Lady Bird Lake Following 

Ban, AUSTIN AMERICAN-STATESMAN, June 16, 2014
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U.S. Geological Survey’s Barbara Mahler and

Peter Van Metre speak during a press conference

held at Lou Neff Point on Lady ... Read More

A landmark 2006 prohibition of a type of pavement sealant ended an

upward trend of a probable carcinogen in Lady Bird Lake, Austin-based

federal scientists report.

The findings, published Monday in the journal Environmental Science

and Technology, offer a measure of vindication for those selfsame

scientists — researchers with the U.S. Geological Survey — and Austin

officials who long battled industry interests that had fought the ban.

Scientists examined

sediment collected for

Lady Bird Lake in three

different decades and

found the probable

carcinogen, called

polycyclic aromatic

hydrocarbons, or PAHs,

had declined by 58

percent since the ban,

reversing a 40-year

upward trend.

Lady Bird Lake was never dangerous for human recreation and remains

below toxicity levels for aquatic life, the scientists and officials said

Researchers find carcinogen dropoff in Lady Bird

Lake following ban

Posted: 6:13 p.m. Monday, June 16, 2014

By Asher Price - American-Statesman Staff

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Monday.

But the upward trend had alarmed scientists and officials because it

indicated, they said, that pockets of the city whose water drains into

the lake had experienced higher PAH levels.

“The lake is our barometer,” said Barbara Mahler, a USGS researcher

who co-authored the paper.

Mahler and her co-author, Peter Van Metre, have been writing about

PAHs since 2000 — and the makers of sealants have been fighting any

tie to their products for nearly as long.

Sealants are used over asphalt in the construction of roads and parking

lots to make them impervious to water and oxygen penetration.

Coal-tar sealants, which do not absorb oil, often are used in gas

stations and parking lots. Particles of the sealant can become dislodged

in areas of heavy traffic and washed into waterways.

The coal-tar sealants contain high levels of PAHs compared with the

kind without coal tar.

In 2003, Austin officials pointed to parking lot sealants as a likely

source of the chemicals as the American-Statesman ran stories about

pollution by the hydrocarbons in and around Barton Springs Pool.

Researchers concluded that, on average, coal tar-based sealants

accounted for half of all polycyclic aromatic hydrocarbons in the lake,

while tailpipe emissions accounted for about one-quarter.

In January 2006, the city became the first in the nation to ban the

sealants. The following year, the ban survived a challenge from a maker

of sealants at the state environmental agency.

But in 2008, sealant companies formed the Pavement Coatings

Technology Council to beat back expansion of the ban to other

communities.

In April, the trade association asked the EPA to end an endorsement of

USGS findings, based largely on Mahler and Van Metre’s work, that the

sealants are the largest source of PAHs in urban lakes and toxic to

aquatic life.

Mahler and Van Metre “have feelings of animosity toward industry,”

said Anne LeHuray, executive director of the trade association. “We

think they think they’re doing the righteous thing — they’re trying to

science it up, but the science doesn’t hold water.”

In response, Van Metre said: “We are scientists working for the U.S.

Geological Survey. Our mission is to do unbiased work for decisionmakers and the public. All the other research not funded by industry

confirm that these products are a potent source of contamination.”

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2 of 5 3/3/2015 3:08 PM
Now roughly 16 million Americans live in communities that have

banned coal-tar sealants, according to Tom Ennis, who runs the blog

Coal Tar Free America. The states of Washington and Minnesota;

Washington D.C.; a handful of cities and several counties around the

country have some sort of ban, according to the blog.

The USGS researchers said activities in waterways are safe because the

hydrocarbons tend to settle into sediment at the bottom of waterways

and are in such small concentrations as to pose little risk to human

health.

“Lady Bird Lake is safe to swim in, but it’s not safe to smear yourself in

sediment,” Mayor Lee Leffingwell said. “It was on a trajectory for it to

be unsafe. We reversed that trend.”

Although hydrocarbons can cause tumors in fish, the fish metabolize

the chemical so it doesn’t make its way up the food chain.

“We’ve gotten push-back from industry,” U.S. Rep. Lloyd Doggett,

D-Austin, said about his efforts to expand the Austin ban nationally. But

the new findings “are the latest indication that the rest of the country

should do something to solve this.”

Major milestones in ban:

2003: Following stories in the American-Statesman about pollution in

and around Barton Springs Pool, city officials point to parking lot

sealants as a likely source of the chemicals, called polycyclic aromatic

hydrocarbons, or PAHs.

2006: Starting Jan. 1, following investigations by Austin’s Watershed

Protection Department and the U.S. Geological Survey, Austin bans

coal-tar sealants.

2007: Texas-based GemSeal Inc., a maker of pavement and tennis court

sealants, tries and fails to get the Texas Commission on Environmental

Quality to overturn the ban, which it said was based on faulty science.

2010: A report by the Austin-based researchers found that coal

tar-based pavement sealants are the largest source of PAHs found in

urban waterways nationwide.

2014: The researchers report that PAHs in Lady Bird Lake had declined

by 58 percent since the ban.

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